Environmental Justice in an Intercultural Frame Empowering Local - - PowerPoint PPT Presentation
Environmental Justice in an Intercultural Frame Empowering Local Communities for Sustainability Presentation prepared for the European RCE Meeting (Vannes, France, 28-30 August 2018) Professor Martin OCONNOR President of the Association
Presentation prepared for the European RCE Meeting (Vannes, France, 28-30 August 2018)
President of the Association ePLANETe Blue RCE Paris Seine (FRANCE
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Winter Snorkelling at Motiti Island
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An ongoing collaborative learning programme, engaging:
(Motiti Rohe Moana Trust)
This project engages, at a local territorial scale, with several facets of the justice and sustainability purposes of the New Zealand Resource Management Act (RMA) and related legislation. It is intended to provide teaching resources of usefulness (1) in the NZ context and (2) internationally, including for teaching in France.
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4 Motiti Island is a small island 10 kms offshore from the city of Tauranga in the Bay of Plenty in Aotearoa (New Zealand).
inhabitants can trace heritage to early settlements on the island as well as mainland communities.
tourism and fishing. The island is in a major commercial fishing zone and is also popular for recreational fishing, diving and other coastal activities.
commercial cargo ship which, until costly remedial actions were taken, threatened surrounding seabed, reef and coastal areas with serious chemical pollution. Several recent and ongoing court cases address intertwined questions of ecological sustainability, environmental justice, status of local Maori people (the Motiti tangata whenua) in historical and cultural context, empowerment for local development, and participation in territorial governance.
Environmental Justice in an Intercultural Frame
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The two cases most directly informing this presentation are:
Act 1991): Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2017-2018]. NZEnvC 67
Moutere o Motiti Inquiry - MRMT (Motiti Rohe Moana Trust) seeking redress from The Crown [ongoing]. WAI 2521
NOTE: Several other recent and ongoing Motiti court cases are closely interlinked. In this presentation we refer also to a national-scale case :
the National Freshwater and Geothermal Resources Inquiry.
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The MRMT sought additional planning controls within the Bay of Plenty Regional Council’s proposed Environment Plan to avoid adverse effects on the outstanding and high values of the Motiti Natural Environment Management Area (MNEMA). The Court concluded in favour of the MRMT, ruling that changes to the Regional Coastal Plan would be appropriate. These include:
fauna within three distinct areas of the MNEMA (surrounding the Astrolabe and Okaparu Reefs and Brewis Shoal; Schooner Rocks and Motunau Island);
in relation to fishing methods that may damage the benthic environment or where they impact particularly on sea birds or
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§102. The isolation and geographical separation of Motiti have resulted in Ngā Hapū o Te Moutere o Motiti forging their own distinct island identity and culture. §103. The Crown has never properly understood the mana motuhake and identity of Ngā Hapū o Te Moutere o Motiti, and has consistently failed to recognise Ngā Hapū o Te Moutere o Motiti as tangata whenua of Motiti Island/ tangata moana of the Motiti Rohe Moana, or to engage with them as a Treaty partner. §105. The uniqueness and isolation of Motiti Island imposes on the Crown a duty to engage directly with the tangata whenua of the island in actively protecting their interests.
SECOND AMENDED STATEMENT OF CLAIM (14 November 2017)
WAI 2521 - Ngā Hapū o Te Moutere o Motiti Claim
(a) According to history and whakapapa, who are the tāngata whenua associated with Motiti Island; and (b) who continues to hold that status on Motiti island?
Claims Settlement Act 2005, settle Motiti Island claims based on whakapapa from Te Hapū?
informed itself of the interests of the tāngata whenua of Motiti Island?
informed itself of, the interests of the tāngata whenua of Motiti Island, what prejudice has been caused to the claimants as a result?
what form, on […] How the Crown should engage with the tāngata whenua… [?]
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q The MRMT (Mohiti Rohe Moana Trust) claiming to represent legitimate MOTITI TANGATA WHENUA q The CROWN (an abstract legal entity, whose duty is to assure governance for the 1840 Treaty of Waitangi parties), expressed as NZ Government and rule of law. q Ngãti Awa / Te Patuwai (tribal groupings/affiliations based on neighbouring mainland NZ) q …. and perhaps other interested parties having standing….
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The conditions of the Motiti tangata whenua, which are to be appraised for their qualities in respect for or violation of ToW obligations, are considered along six systemic axes, or dimensions of WEALTH/IMPOVERISHMENT. These are: Á SUBSISTENCE (individual/group health, comfort and security) Á ECONOMIC DISTRIBUTION (stocks and flows regulated in money values) Á ECOLOGICAL DISTRIBUTION (environmental assets & services) Á RECOGNITION (status within societal/cultural forms & groups) Á PARTICIPATION (agency in governance and administration) Á CREATION (contribution to others’ opportunities and wealth)
These six dimensions overlap; but are relatively complete in the sense that they give access to the different material & existential dimensions of being and capacity (or deprivation).
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A Generic Typology with Application to Justice/Sustainability
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(A) Examples of Generic Frameworks and Concepts….
Á Respect of the rule of law (as understood in prevailing legal traditions); Á Sustainability Quality/Performance Multiple Bottom Lines (QPMBLs) Á The Social Dimension of Deprivation (e.g., Max-Neef, Sen, Eurostat…); Á ‘Living Standards’ Frameworks (e.g., Current Wellbeing & 4 Capitals); Á Material exploitation (cf., the 4 Cheaps of Jason Moore (nature, work, energy, food; sometimes enlarged to include ‘care’ as a category of service); Á Respect/exclusion (cf., UN Declaration on the Rights of Indigenous People); Á Pertinent Western theories/principles of Justice & Responsibility (e.g., Rawls, Jonas)
These frames of rightness and wrongness overlap. Any one could be adopted as a preferred reference system. But, in the context of ToW negotiations no one framing will provide an adequate picture. Essential insights are gained from comparison (or confrontation)
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Á The Treaty of Waitangi (ToW, signed in 1840) ; Á Respect of the rule of law (as understood in legal traditions carried by the Crown) ; Á Upholding Mana maori / Tikanga (as linked with taonga, tino rangatiratanga, kaitiakitanga, etc., under the ToW; and with contemporary references e.g., Ruruku Whakatupua - Te Mana o Te Awa which upholds the mana
Á Sustainability QPMBLs as framed in the NZ RMA (Resource Management Act 1990).
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The signals mobilized for the issues appraisal are discursive “ARGUMENTS”, obtained through discourse analysis & synthesis of evidence presented by WAI 2521 parties to the Waitangi Tribunal. Á Arguments are mobilised within the KerBabel DELIBERATION MATRIX framework, by/for each protagonist [WHO], relative to defined dimensions of evaluation attention [WHAT], with reference to the various justification frameworks [WHY]. Á This framework (WHO x WHAT x WHY) gives visibility to points
The Arguments are catalogued and classified in a KerBabel Indicator Kiosk (KIK) and the ASSOCIATED KERBABEL REPRESENTATION RACK (KRR) . These cataloguing systems are relational data bases that can be maintained and renewed through time (for Motiti), and that could potentially also be extended across other analogous cases.
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X-axis — WHO ? The Protagonists or Stakeholders Y-axis — WHAT ? Dimensions of Wealth Z-axis — WHY ? Frameworks for Judgement
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Source: The primary legislation is: The Resource Management Act: An Act to restate and reform the law relating to the use of land, air, and water, 1991 No.69, 22 July 1991. Wellington, New Zealand House of Representatives.
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and physical resources.
and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while: (a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.
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21 In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
(a) The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development: (b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: (c) The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna: (d) The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers: (e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga. [(f) the protection of historic heritage from inappropriate subdivision, use, and development.] — added 2003 [(g) the protection of protected [formerly ‘recognised’] customary activities.] — added 2004; amended 2011.
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In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to—
(a) Kaitiakitanga: [(aa) The ethic of stewardship:] — inserted 1997 (b) The efficient use and development of natural and physical resources: [(ba) The efficiency of the end use of energy] — added 2004 (c) The maintenance and enhancement of amenity values: (d) Intrinsic values of ecosystems: (e) Repealed [supplanted in 2003 by §6 (f), and later also §6 (g) at a higher status]. (f) Maintenance and enhancement of the quality of the environment: (g) Any finite characteristics of natural and physical resources: (h) The protection of the habitat of trout and salmon: [(i) the effects of climate change:] — added 2004 [(j) the benefits to be derived from the use and development of renewable energy.] — added 2004
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NOTE: The Treaty contains three sections, sometimes described as the kawanatanga (governance) article, the rangatiratanga (Maori chieftainship) article, and the tikanga (customary practices) article.
See: https://www.waikato.ac.nz/pod/modules/tiriti/treatymao.html#maori
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taonga for Maori over which hapu or iwi exercised te tino rangatiratanga and customary rights in 1840 ? WAI 2358 — In the matter of the Treaty of Waitangi Act 1975 and in the matter of the National Freshwater and Geothermal Resources Inquiry.
Presiding Officer: Chief Judge Isaac. Extract from the
Memorandum of Counsel for the New Zealand Maori Council setting out cross-examination questions for the Crown on the Tribunal’s Stage I findings.
Dated: 22 August 2018.
What does Water Governance Entail? - SUBSTANCE
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finding that Maori had both a physical and a metaphysical relationship with water under tikanga?
finding that Maori rights in respect of water included authority and control
finding that Maori authority in respect of water was sourced in tikanga and carried with it kaitiaki
the water?
that water was vital for the sustenance
both in body and spirit?
that water bodies had their own mauri (life force), which was so tied to that of the people that if it sickened they did too?
that for Maori water bodies are indivisible regimes, encompassing banks, bed, water, fish, aquatic plants and spiritual plants (taniwha), and with no element being severable? [… / …]
What does Water Governance Entail? - PROCEDURE
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finding that sometimes authority and use was shared between hapu, but was always exclusive to specific kin groups?
finding that access to water resources and use for outsiders required permission and often payment of a traditional kind?
the finding that ‘full-blown’
English sense was the closest legal equivalent for Maori cultomary rights in respect of freshwater in 1840?
rangatiratanga was also more than ownership, and encompassed the authority of hapu to arrange and manage their affairs in partnership with the Crown?
did not see the sharing of their water bodies as a relinquishment of tino rangatiratanga but rather an exercise of tino rangatiratanga?
thre might be a general expectation of access and use for non-commercial purposes, access would be on Maori terms until such time as Maori chose to make a Treaty-compliant alienation, and Maori could say no?
duty to actively protect Maori development rights in water bodies to the fullest extent reasonably practicable?
clarity and visibility for the Motiti Island tangata whenua in their efforts to sustain livelihood, culture and ecosystem viability.
2521 case, the Motiti study will act as a pilot or demonstration study for the documentation and analysis of environmental justice or other situations of controversy.
recent EC funded EJOLT project (see http://www.ejolt.org/ and http://www.envjustice.org/), and ongoing in the framework of the EJAtlas (see https://ejatlas.org/).
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Martin O’CONNOR
Scientific Director — RCE Paris Seine Email : Tesseract.REEDS@gmail.com Association ePLANETe Blue Dampierre-en-Yvelines, France.
Seabird Feeding Frenzy – Fish off Motiti Island
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